Evidence Flashcards Preview

General rule - evidence that has any tendency to make a material fact more probable or less probable than it would be without the evidence, then it is relevant. but evidence must relate to time, event or person in litigation

Exception - certain similar acts may be relevant if probative of a material issue

to prove cause and effect

to show common plan or scheme of fraud

show instrumentality

infer intent from prior act

to rebut impossibility

to establish value

habit

business routine

If relevant, should evidence be excluded based on:

judicial discretion - exclude if the probative value of the evidence is substantially outweighed by dange of

unfair prejudice

confusion of issues

misleading the jury

undue delay

wasting time

cumulative evidence

Public Policy

Liability insurance no admissible to show negligence or ability to pay

can be used to show ownership and control

Subseqyent remedial measures not admissible to show negligence, defect, or need for warning. can be used to show ownership and control.

Limitations - must be a claim with a claimant that gives some indification that he plans to file a claim

the claim must be disputed as to either liability or amount

an offer to pay hospital or medical expense is not admissible either. but an admission that accompanies the naked payment offer is admissible.

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Character Evidence

Four Preliminary Questions

For what purpose to do seek to offer character evidence?

when character is ultimate issue in the case

to impeach the credibility of a witness

What method to prove character

specific acts

opinion testimony

testimony as to the person's general reputation

What type of case? Civil or criminal

What trait of a character

it must be the specific trait which is substantively at issue in the case

Civil Cases - Character evidence not admissible as circumstantial evidence to prove conduct. but character evidence is admissible in a civil case if character is directly at issue (defamation, negligent entrustment, fraud)

Criminal Cases

Basic Rules - bad character in any form is not admissible at the initiative of the prosecution if the sole purpose is to show criminal propensity UNLESS and UNTIL the accused opens the door by preenting evidence of good character for the pertinent trait in the form of reputation and opinion to show innocence. Only then may the prosecution respond by showing bad character of the accused by:

cross-examining the character witness, asking questions to him about specific instances of Defendant's misconduct

Calling qualified witness to testify to Defendants bad reputation

Evidence of the victims bad character

In cases other than rape - self-defense. D may present evidence of the victims bad character when it is relvent to show D's innocence.

By reputation or opinion to show victims violent disposition.

by knowldge of specific acts to show D's state of mind

Prosection may counter with reputation or opinoin evidence of the victims good character or the defendants bad character of the same trait

exception in criminal case - to prove that someone other than D is the source of seman, injury, or other physical evidence. specific instances of sex between D and V are admissible by prosecution for any reason and by the D to prove consent

Exceptions in civil cases - admissible if not excluded by any other rule and its probative value substantially outweighs te danger of harm to the victim.

Evidence of a person's other crimes or miscoundct is generally inadmissible

unless it is relevant to some issue other than character or disposition

to impeach redibility 0 to show lack of truthfulness after D testifies (prejury convictions)

Applies in both civil and criminal cases

to be admissible, there must be sufficient evidence to support a jury finding that D committed the prior act AND its probative value must not be substantially outweighed by the dange of unfair prejudice

evidence of prior sexual assult or child molestation is always admissible in a case where D is accused of those things

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Judicial Notice

Judicial Notice of Fact - court may take judicial notice of indisputable facts that are either

common knowledge in the community or

easily capable of verification

Effect of judicial notice

in a civil case - fact is conclusive

in a criminal case, jury may, but is not required to accept as conclusive

Judicial Notice of Law - COurts must take judicial notice of federal and state law and the official regulations of the forum state and the federal goverment. Courts may take judicial notice of municipal ordinacnes, pricate acts, resolutions of congress, or laws of foreign countries.

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Real Evidence

Defined - actual physical evidence addressed directly to the trier of fact. may be direct, circumstantial, original, or prepared

General conditions of admissibility

authentication - object must be identified as to what the proponent claims it to be either by

testimony of a witness that she recognizes object, or

evidence that the object has been held in substantially unbroked chain of possession

If the condition of the object is significant, it must be shown to be in substantially the same condition at trial

balancing test to weigh relevance of evidence v. convenience of bringing it to the courtroom, indecency or impropriety or undue prejudice

Particular types of real proof

photos, diagrams, maps, etc - admissible if relevant. evidence used solely for explanatory purpsopes permitted at trial, but usually not admitted into evidence

maps, charts, models, are usually admissible to illustrate testimoney, but must be authenticated

child may be exhibited to prove race in paternity suit

injuries may be exhibited byt court may exclude if unfair prejudice

court has discretion to permit jury to view places at issue in the trial

court has discretion to permit experiments or demonstrations in the courtroom

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Documentary Evidence

In general - court may admit relevant documentary evidence. when you get a question about a writing, ask yourselef

was it authenticated

is its hearsay

is it the best evidence

Authentication - to be admitted, a writing must be authenticated by proof that shows the writing is what the proponent claims it to be. proof must be sufficent to support a jury finding. propery authentications include

admission by party whom evidence is offered against

eyewitness testimony

evidence of handwriting

law witness with personal knowlege

expert who has compared styles

evidence that document is at last 20 years old, regular on its face and was found in a cplace where such writings are kept

evidence that it was written in response to a communication sent to claimed author

witness familiar with scene can authenticate photo. when no witness available, photo can be authenticated by showing camerwa was properly operating at relevant time

x-rays - must show that the process used is accurate, the mahcine in working order

oral statements - may be authenticated by anyone who has heard the voice at any time.

for telephone, there must be voice recognition, speaker had knowledge of certain facts only a particular person would have, witness called a particular person and that person answered, or he called a business and talkd with the person answering the phone about matters relevant to the business

No authentication needed for

ceritfid copies of public records

official publications

newspapers

etc

Best Evidence Rule- to prove the content of a writing, the original writing mus tbe produced. secondary evidence of the writing (oral testimony) is only admissible if the original is unavailable

applies where the writing is a legally operative instrument or a witness's knowledge of a fact results from having read it in a document

does not apply where

facts to be proven exist independently of writing (witness has personal knowledge

the writing is of minor importance to controversy

records are voluminous

public records

machine generated copies of an original are admissible unless the authenticity of the original is challenged or unfairness would result

if proponet cant produce the original, he may offer secondary evidence if a satsfactory explanation is given for nonproduction of original. valid excuses are:

loss or destruction of the original

original is in possession of a 3rd party outside jurisdiction of court and is unobtainable

original is in possession of an adversaary who fails to produce the original

judge decideds admissibility of diuplicates, but jury decides

wheterh the original existed

wheter a writing is an original

Parol Evidence Rule - if an agreement is reduced to writing. The writing constitutes the whole agreement. Prior contemporaneous negotiations or agreements are inadmissible to vary the terms of the writing. Rule does not apply when

there is an incomplete K, or to explain an ambiguous term

reofrm a mistake of K

showt hat K is void or voidable, or that it was subject to condition precdent

show subsquent modificaiton or discharge of written agreement

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Testimonial Evidence - Competency of Witnesses

Witness must pass test of basic reliability, but they are generally presumed to be competent until the contrary is established

Qualification under the Federal Rules

Witness must have communicable personal knowledge AND

witness must declar that he will testify truthfully

Special Groups

Children may testify depending on capcacity/intelligence as determined by the judge

an insane person may testify provided he can understand the obligation to speak truthfully and he has the capacity to be truthful

Presiding jduge and jurors may not testify

Dead Man Act - Bars an interested party from testifying to a personal communication with a deceased when such testimony is against the deceased's successor unless there is a waiver

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Form of Examination of Witness (testimonial evidence)

Leading Questions genearlly improper on direct examination, but permitted

on cross-exam

to elicit preliminary or introductory matter

to refresh a witnesses memory

when a witness is hostile

Other improper forms of questions

misleading

compound

argumentative

conclusionary

cumulative

unduly harassing

calls for narrative

assumes facts not in evidence

Answers that may be stricken

lacks foundation

non-responsive

note - request must be made before Witness asnwers if the question is objectionable

Witness cannot read testimony from prepared writing. but a writing can be used for:

refreshing a witness's recollection

can use anything to refresh memory - no authentication, hearsay, or best evidence problems b/c writing is not offered into evidence

Witness must say "I can't remember"

the adverse party is entitled to have whatever writing is used to refresh a witness's recollection produced at trial, and use it on cross-exam

OR, under the recorded recollection doctrine, if a witness still can't remember, the writing itself may be read into evidence IF the proponent proves that:

The witness had personal knowledge of the facts in the writing at one time

the writing was made by the wtiness under her direction, or it was adopted by the wtiness

the writing was timely made when the matter was fresh in the witness' mind

the writing is accurate and

the witness must be unable to remember all or part of the details.

The is hearsay, but it is one of the exceptions

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Opinion Testimony

Lay testimony - admissible if

(1) rationally based on the perception of the witness,

(2) the opinion is helpful to the trier of fact (no legal conclusions), and

(3) not based on scientific, technical, or other specialized knowledge.

Expert opinion - 4 basic requirements (determined by judge)

Subject matter must be appropriate for expert testimony. the opinoinj must be sufficiently reliable that is helpful to the trier of fact

Methodology underlying hte opinion must be reliable

The opinoin must be relaevnt

Witness must be qualified as an expert (skills + experience sufficient)

Expert must possess reasonable certainty or probability regarding the opinoin. more than mere speculatoin

Opinion must be supported by a proper factual basis. facts support opinoni must be:

facts within the personal knowledge of the expert

facts supplied to the expert by the evidence

facts, not in evidence, as long as they are of a type that experts in that field would reasonably rely upon in making out of court profession decisions.

Learned treatises -

can be used to rebut or impeach opponent's expert IF:

your opponent's expert relies on that test or treatise

elicit an admission on cross-examination "are your familiar w/X, do you consider it authoritative or reliable?"

Call your own expert witness to testify that text is reliable

judicial notice

Can be used for its truth IF

reliance by your expert on direct

admission on cross-exam by opposing expert

testimony of any expert, or

judicial notice

Limitations

expert must testify unless judge takes judicial notice

treatise is admitted by being read to the jury. text itself is not recieved as evidence

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Cross-Examination

Party has absolute right to cross-examine any witness who testifies live. if witness refuses cross-exam, then testimony must be stricken

limited to

scope of direct examination

testing the credibility of witness

Collateral matters doctrine - no extrinsic evidence is allwoed to contradict a witness as to a collateral matter. cross-examination is bound by the answers given by the witness

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Credibility - Impeachment

Accrediting your own witness

no bolstering your own witness unless there has first been impeachment

prior statement of identification made by the witness are admissible.

impeaching your own witness is allowed IF the witness is:

an adverse party or identified with an adverse party

hostile

one whom the party is required by law to call

gives surprise testimony that is affirmatively harmful

impeaching your adversary's witness - a witness may be impeached by either cross-exam or by extrinsic evidence through

prior inconsistent statements

generally admissible only to impeach - not for its trust

but if the prior inconsistent statement was given udner oath AND at a trial, hearing, or in a deposition, such a statement IS admissible for its truth

Extrinsic evidence is admissible to prove that the prior inconsistent statement, but must give witness an opportunity to explain or deny the statement

Prior inconsistent statement of a party = an admission. admissions are fully admissible for their truth

Evidence of bias - may be shown by extrinsic evidence after a foundation is laid by inquiry on cross-exam of the target witness

prior conviction of a crim

mst be a felony or a crime involving dishonesty. no crimes older than 10+ since release

Extrinsic evidence of conviction is admissible

Specific acts of deceit or lying may be asked about in cross-exam

i.e. did you lie on your income taxes, etc

good faith required, with reasonable basis for ebleiving that the act was done by the witness

act inquired about must involve deceit

no extrinsic evidence permitted

bad reputation or opinoin for truth or veracity. may call community mouth to testify to bad rep. cant testify to specifc instances of deceit

Rehabilitating after impeachment

explanatoin on redirect

good reputation - get opinion testimony after character attack

prior consistent statements - may be used to rebut an express or implied charge of facbrication or improper influence of motive

can't use to rebut charge or prior inconsistent statement

admissible for its truth

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Attorney Client Privilege

Confidential communications between attorney and client made during professional legal consultation are privileged from disclosure unles waived by the client or the representative of the deceased client.

elements

the right parties

confidential communication

intent by client to establish a professional legal relationship

note - appleis to atty's agent as well. including a doctor who examines the client at atty request

exceptions

future crime or fraud

when client or patient affirmatively puts commincation in issue

dispute between the parties as to the professional relationship

where two or more parties commincate with attorney about amatter of common interest, no privilege between them

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Physician - Patient Privilege

The patient has a privilege against disclosure of confidential informaiton acquired by teh physician in a professional relationship entered into for the purpose of obtaining treatment

Key Elements

patient must be seeking treatment

information acquired must be confidential and necessary for treatment

doctor-patient priviledge does nt apply in federal corut. nor dos it apply where the patients puts medical treatment at issue

wavier of privilege is common especially because of patient litigation exception.

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Husband-Wife Privilege

does not apply to intra-family injury cases

dual privilege

spousal immunity privilege - one spouse cannot be forced to give adverse testimony against the other in a criminal case. requirements

valid marriage at the time of trial

protects against any and all testimony (including pre-marriage facts)

holder of privilege is witness spouse not party spouse

applies only in criminal cases

Confidential marital communications privilege - spouse can't be required to disclose confidential communication made by the other during the marriage. requiremtns:

married at the time of communications

protects only confidences, not all testimony

either spouse holds the privilege, not just witness

applies in civil and criminal cases

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Procedural issues of testimonial evidence

Procedural issue - federal evidence law applies in federal courts because it is procedural. but there are three exceptions where state evidence law applies in federal court IF state substantiv law applies:

presumptions and burdens of proof

competency of witnesses (dead man's statute)

privileges -

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Exclusion and sequestration of witnesses

Genearlly judge may order witnesses exlcuded from the courtroom. but the judge may not exclude

a party or a designated officer/employee of a party

a person whose presence is essential to the presentation of a party's case

a person statutorilu authorized to be present

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Hearsay

Out of court statements offered for the purpose of establishing the truth of the matter asserted

present sense impression - a statement describning or explaining an event while it is happening (Nick is at the door)

Declaration of past physical cnodition - statmetns made describgin medical history. admissible if

made to medical personnel

pertient to either diagnosis or treatment

Business records - records made as a memo of any business transaction is admissible if:

the record is germane to business

it appears that the record was maade in the regular course of business

the business record consists of matters within the personal knowlege of the entrant or within the knowlege of someone with a duty to transmit such matters

entry made at or near the time of the transaction

authenticity established by custodian

testifying that the record is a businss record, or

certifying in writing that the record is a buseinss record

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IMportant test notes

a. Preliminary fact questions upon which admissibility depends are decided by the judge, and she is not bound by the rules of evidence to make this determination (i.e. she can use hearsay).
b. You are entitled to impeach the credibility of a hearsay declarant, even when he’s absent, by any evidence which would be admissible for impeachment if the declarant had testified live.
c. Mixing hearsay and writings: remember best evidence rule. Where a witness want to testify to a recorded message, which meets a hearsay exception, it is still inadmissible unless you satisfy the best evidence rule (i.e. explaining the absence of the recording itself).

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Constitutional issues

Six Amendment - Confrontation Clause

Testimonial out of court statements will be admissible against the accusesd in a criminal case only if:

the declarant is unavailable AND

the defndant has a prior opportunuty to cross examine

does not apply if prosection demonstrates that D had forfeited his CC obnjection by wrongdoing that prevented the declarant from testifying at trial